Indigent Defense

April 9, 2001

http://www.smartertimes.com/385/indigent-defense

The U.S. Supreme Court has ruled that in criminal cases, the poor have a constitutional right to adequate legal representation provided at taxpayer expense, and Smartertimes.com agrees. But if the best the New York Times can come up with to show that the indigent defense system is not working is today's long installment in its series on "two-tier justice," well, then the pickings are pretty thin. In fact, the main topic of the Times article today seems not to be the need for better legal representation for the poor, but the need for higher pay for lawyers.

The Times reports that "Judges, lawyers and defendants say the system is at the breaking point." The Times says that "Their chief complaint is New York's pay, $40 an hour in court and $25 an hour out of court, the second lowest rate in the nation." But the two examples the Times provides of lawyers earning these fees for representing poor persons accused of crimes are a lawyer who was paid $125,041 by the city last year and a lawyer who was paid $118,027 by the city last year. Another big complaint seems to be that these lawyers lack "secretaries" and "message takers."

Smartertimes.com is ready to be convinced that the system is failing, but the fact that criminal defense lawyers for the poor are eking by on $125,000 or $118,000 a year and going without secretaries somehow seems less than compelling evidence. Many New York Times reporters, in this age of voicemail, go without secretaries and earn less than those sums annually. (Never mind that the article doesn't explain why lawyers would need to employ both a secretary and a "message taker," unless they were working at a big corporate law firm that was in the habit of passing along its inflated costs directly to its corporate clients.) The Times and the advocates that the newspaper quotes never explain why the right to adequate counsel dictates that that counsel must be paid twice as much as, say, a New York City public school teacher. And they also never explain why the taxpayers' limited resources would be best devoted to paying these court-appointed lawyers more than they already make, instead of giving raises to teachers or probation officers or drug rehabilitation counselors.

The description of New York's pay as "the second lowest rate in the nation" seems a bit slanted. It may be the second lowest rate in the nation for outside court-appointed indigent defenders. However, as the article explains elsewhere, many other states rely heavily on public defender offices. And defenders in those offices are often paid not by the hour, but, like prosecutors, on a straight annual salary. A hardworking entry-level public defender in plenty of other jurisdictions could well end up making less than the hourly wage the Times cites and would definitely end up making less than the annual fees of $125,00 or $118,000 that the Times cites.

Near the end of today's article complaining about the low pay for lawyers, some failings of the lawyers are cited. "In one case, a lawyer filed no motions and failed to request the proper jury instructions. In another, the attorney made an incorrect legal argument," the Times reports. But while the Times claims the lawyers are underpaid and that they screwed up, the Times never proves that the screw-ups are the result of the low pay. As Microsoft and Al Gore have both learned recently, even the best and highest paid lawyers can mess up sometimes.

China Hand: An article in the international section of today's New York Times reports on the maneuverings between America and Communist China. It quotes a man identified as "a former American ambassador to China, J. Stapleton Roy, who is now a member of Kissinger Associates, the consulting firm headed by former Secretary of State Henry A. Kissinger." It would be helpful if the Times told readers whether Kissinger Associates has any clients with interests in Communist China, and what they are. That would be useful for readers trying to evaluate Mr. Roy's comments.

Note: Smartertimes.com is in Massachusetts and operating off the New England Final edition of the New York Times.

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